Mire v. EatelCorp, Inc.

849 So. 2d 608, 2003 WL 21042330
CourtLouisiana Court of Appeal
DecidedMay 9, 2003
Docket2002 CA 1705, 2002 CW 0737
StatusPublished
Cited by8 cases

This text of 849 So. 2d 608 (Mire v. EatelCorp, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mire v. EatelCorp, Inc., 849 So. 2d 608, 2003 WL 21042330 (La. Ct. App. 2003).

Opinion

849 So.2d 608 (2003)

Jeffrey W. MIRE, Shane M. O'Quin, and Barbara T. Estes, and a Class of Similarly Situated Individuals
v.
EATELCORP, INC., Primco Personal Communications, L.P. d/b/a Verizon Wireless and Spring PCS, Inc.

No. 2002 CA 1705, 2002 CW 0737.

Court of Appeal of Louisiana, First Circuit.

May 9, 2003.

*611 Leonard Cardenas, III, Randall L. Estes, Baton Rouge, for Appellees Plaintiffs Jeffrey W. Mire, et al.

Gordon D. Polozola, G. William Jarman, Glenn N. Farnet, Jeffrey N. Boudreaux, Baton Rouge, for Appellant Defendant EatelCorp., Inc.

Thomas A. Roberts, New Orleans, for Appellee Defendant Verizon Wireless.

Panel composed of Judges FRANK FOIL, PAGE McCLENDON and WILLIAM F. KLINE, Jr.

FOIL, J.

This is an appeal by defendant, Eatel-Corp., Inc., challenging the decision of the trial court to certify a class action. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs, Jeffery W. Mire, Barbara T. Estes and a class of similarly situated individuals, filed this class action against defendant, EatelCorp., Inc., on behalf of all consumers who purchased a PCS telephone from Eatel. They alleged that Eatel did not adequately inform customers that their Eatel PCS phones could only be used on an Eatel PCS network, and if they canceled their Eatel PCS service, their phones could not be reprogrammed to work on another provider's network unless they paid a fee for a reprogramming code, or subsidy lock. Plaintiffs asserted several theories of liability, including fraud, breach of contract, and negligent misrepresentation, but abandoned those theories *612 and argued their case under the theory of redhibition. Eatel opposed plaintiffs' motion to certify a class, contending that this fraud/misrepresentation case will require plaintiff-by-plaintiff adjudication of liability and defense issues. Following a certification hearing, the trial court granted plaintiffs' motion and certified a class.

Eatel filed a motion for suspensive appeal regarding the class certification and also, out of an abundance of caution, a notice of intent to apply for supervisory writs. The trial court assigned a date for Eatel to seek writs and denied the suspensive appeal.

Eatel then filed two writ applications with this court: 2002 CW 0719, which challenges the trial court's denial of its motion for suspensive appeal and 2002 CW 0737, which challenges the trial court's certification of the class action. This court granted the writ in 2002 CW 0719, vacating the trial court's order denying Eatel's motion for suspensive appeal and remanding for entry of an order of appeal. Plaintiffs' application for writs from the supreme court was denied. Accordingly, Eatel's appeal was then lodged with this court. Writ number 2002 CW 0737 was referred to this panel to be handled in conjunction with this appeal.

STANDARD OF REVIEW

The trial court's decision to certify a class action is a two-step process. Therefore, appellate review of such decisions must also follow a two-step analysis. The trial court must first determine whether a factual basis exists for certifying the matter as a class action. These factual findings are subject to review by the appellate court pursuant to the manifest error standard. Singleton v. Northfield Insurance Company, 01-0447 (La.App. 1 Cir. 5/15/02), 826 So.2d 55, 60-61, writ denied, 02-1660 (La.9/30/02), 825 So.2d 1200.

If the trial court finds that a factual basis exists for certifying the action as a class action, it then exercises its discretion in deciding whether to certify the class. This aspect of the judgment is subject to review pursuant to the abuse of discretion standard. Id. at 61. In reviewing such decisions, wide latitude must be given to the trial court in considerations involving policy matters and requiring an analysis of the facts under guidelines helpful to a determination of the appropriateness of a class action. Unless the trial court committed manifest error in its factual findings or abused its discretion in deciding that class certification is appropriate, we must affirm the trial court's determination. Id.

DISCUSSION

The class action is a nontraditional litigation procedure permitting a representative with typical claims to sue or defend on behalf of, and stand in judgment for, a class of similarly situated persons when the question is one of common or general interest to persons so numerous as to make it impracticable to bring them all before the court. Ford v. Murphy Oil U.S.A., Inc., 96-2913, 2917, 2929, p. 4 (La.9/9/97), 703 So.2d 542, 544.

Article 591 of the Louisiana Code of Civil Procedure sets forth the prerequisites for maintaining a class action and establishes that the use of the class action device is appropriate when:

1) The class is so numerous that joinder of all members is impracticable.
2) There are questions of law or fact common to the class.
3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
*613 4) The representative parties will fairly and adequately protect the interests of the class.
5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

All of the above elements must be present for an action to be properly certified as a class action. La.Code Civ. P. art. 591 B. The initial burden to establish these elements is on the party seeking to maintain the class action. Conclusory allegations of the pleadings alone are insufficient to establish the existence of a class. Singleton v. Northfield Insurance Company, 826 So.2d at 62. In determining whether these elements have been established, the court may consider the pleadings, affidavits, depositions, briefs, exhibits, and testimony presented at a certification hearing. Id.

If these prerequisites are met, the trial court must make an additional inquiry before the action may be properly certified as a class action. Paragraph B of article 591 authorizes four possible types of class actions, each with its own separate requirements. The plaintiffs in this matter sought certification pursuant to paragraph B(3). Under this option, the class action may be maintained only if the trial court additionally finds that the questions of law or fact common to all members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Id.

Class certification is purely procedural. Therefore, the issue at a class certification hearing is whether the class action is procedurally preferable, not whether any of the plaintiffs will be successful in urging the merits of their claims. The court is not authorized by statute or by history of the class action procedure to assess the likelihood of success on the merits before approving a class action. The determination of whether there is a proper class does not depend upon the existence of a cause of action. Id.

PREDOMINANCE OF COMMON ISSUES

Eatel urges three assignments of error for our review. First, Eatel argues that the trial court erred in certifying a class action because the "predominance" requirement of La.Code Civ. P. art.

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849 So. 2d 608, 2003 WL 21042330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mire-v-eatelcorp-inc-lactapp-2003.